NEWS & ARTICLES
The latest sanctions imposed on Russia are set out in Council Regulation (EU) 2022/1269 of 21 July 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures against Russian actions destabilising the situation in Ukraine. The following link provides access to all amendments to date to Regulation (EU) No 833/2014.
These measures contain, among other restrictions on the export and import of certain products, a ban on access to EU ports for vessels registered under Russian flag as of 17 April 2022, including those that have changed their flag or registry to the flag or registry of any other state after 24 February 2022.
This ban applies to any Russian ship with at least one international certificate from SOLAS, MARPOL or LOAD LINES Conventions. This ban includes fishing vessels, vessels under 500GT and pleasure/recreational boats.
The European Maritime Safety Agency (EMSA) has created a list identifying Russian-flagged ships that have changed their flag to another state after 24 February 2022. Thus, every Member State has them perfectly identified and a port alert may be programmed according to the IMO of these ships.
With regard to pleasure/recreational boats, it is emphasised that the boats that already are in a European port will not be allowed to re-enter if they leave such.
In addition to the ban on Russian-flagged vessels entering port, it is important to remember that, regardless of the vessel’s flag, goods coming from Russia and destined for the EU could also be subject to sanctions. In this regard, we can highlight:
- Ban on the import and purchase, directly or indirectly, of steel products originating in or exported from Russia. These steel products are listed in Annex XVII of the Regulation.
- Prohibition to import and purchase, directly or indirectly, products listed in Annex XXI of the Regulation (cement, chemicals, fertilisers, aluminium…) from 10 July 2022.
- Ban on the import and purchase, directly or indirectly, of other solid fossil fuels originating in or exported from Russia, listed in Annex XXII of the Regulation, which entered into force on 10 August 2022 for contracts concluded before 9 April.
- Prohibition to sell, supply, transfer or export, directly or indirectly, goods listed in Annex XXIII for its use in Russia.
- Prohibition to import and purchase, directly or indirectly, crude oil or petroleum products listed in Annex XXV of the Regulation, originating in or exported from Russia, with certain exceptions detailed below.
Exclusions and Special situations
However, the following exclusions should be noted:
- Ships in need of assistance seeking a place of refuge, in case of emergency calls for reasons of maritime safety, or to save lives at sea.
- Ships and vessels that prior to 17 April 2022 were already in ports or nautical facilities in Spain, which, as mentioned above, if they leave said port will not be authorised to enter again.
Likewise, there are a series of special situations in which access to a vessel with Russian flag, or that previously had Russian flag, may be permitted under specific authorisation issued by the competent authorities, which would allow them to enter port. These are as follows:
- Unless prohibited under Article 3m or 3n of the Regulation, the purchase, import or transport into the EU of natural gas and petroleum, including refined petroleum products, titanium, aluminium, copper, nickel, palladium and iron ore, as well as certain chemical and iron products listed in Annex XXIV of the Regulation.
- The purchase, import or transport of pharmaceutical, medical, agricultural and food products, including wheat, as well as those fertilisers permitted to be imported, purchased and transported under Regulation 833/2014.
- Humanitarian purposes.
- The transport of nuclear fuel and other products strictly necessary for the operation of any civil nuclear capability.
- The purchase, import or transport in the EU of coal and other solid fossil fuels, listed in Annex XXII, until 10 August 2022.
- Those vessels that have changed their Russian flag or register to the flag or register of any other State before 16 April 2022, having determined that:
(a) Russian flag or registration was a contractual requirement; and
(b) access is necessary for the discharge of products that are strictly necessary for the completion of renewable energy projects in the EU, provided that the import of such products is not otherwise prohibited under Regulation 833/2014.
For the specific case of those vessels not flying Russian flag but carrying goods subject to the regulation of Article 3m of the Regulation, i.e. the sanctioning of crude oil or petroleum products listed in Annex XXV, the following shall apply:
- The prohibitions laid down in Article 3m(1) and (2) shall not apply:
(a) until 5 December 2022, to one-off transactions for near-term delivery, concluded and executed before that date, or to the execution of contracts for the purchase, import or transfer of goods falling under CN 2709 00 concluded before 4 June 2022, or of ancillary contracts necessary for the execution of such contracts, provided that those contracts have been notified by the relevant Member States to the Commission by 24 June 2022 and that the one-off transactions for near-term delivery are notified by the relevant Member States to the Commission within 10 days of their completion;
(b) until 5 February 2023, to one-off transactions for near-term delivery, concluded and executed before this date, or to the execution of contracts for the purchase, import or transfer of goods falling under CN 2710 concluded before 4 June 2022, or of ancillary contracts necessary for the execution of such contracts, provided that those contracts have been notified by the relevant Member States to the Commission by 24 June 2022 and that the one-off transactions for near-term delivery are notified by the relevant Member States to the Commission within 10 days of their completion;
For the management of the exclusions referred to in the previous point, and only in those cases in which the cargo has not already passed the formalities for admission to the Common Customs Area in another port of the European Union, the shipping agents shall, if possible, upon request of the corresponding port of call, provide the Port Authority with a copy of the contracts certifying that the cargo is subject to one of the two situations mentioned above.
The shipowner or agent of any Russian flag vessel that may be subject to the particular situations detailed above, must submit to the relevant Port Authority, and if possible before the call request, a “Responsible Declaration”.
They must also prove the need to use the specific vessel flying the Russian flag and not another vessel flying a different flag.
The presentation of these documents is necessary for the berthing designation and consequently the authorisation of entry to port, unless it is clear from the analysis of the same and the accompanying documentation that it is not subject to the application of paragraph 5, article 3ea, of Regulation (EU) No. 833/2014 (which lists the aforementioned special situations), or that the use of said vessel is not essential, in which case entry to port shall be denied and it may be expelled from the waters in which Spain exercises sovereignty, sovereign rights or jurisdiction for the purposes of its entry to a Spanish port.
In cases in which ships with Russian goods but flying the flag of another state request to call at a Spanish port, the Port Authority will inform the Customs Administration of the corresponding port, for the evaluation of the cargo and whether or not it is subject to sanctions, with Customs giving instructions for the admission of the ship to port.
The cases of Russian-flagged vessels, whether or not subject to exclusions, which, by transshipping the cargo, whether in territorial or international waters, to another vessel whose flag allows it to be admitted to an EU port, are to be considered as an attempt to avoid sanctions.
There is a website called EU sanctions map, which is very useful to find the latest consolidated versions of the adopted Regulations.
Arizon Abogados S.L.P